Perry v. NCL (Bahamas) Ltd. d/b/a Norwegian Cruise Line
Filing
27
ORDER granting 19 Plaintiff's Renewed Motion to Compel Discovery. Signed by Magistrate Judge Andrea M. Simonton on 12/12/2011. (mmn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-22778-CIV ALTONAGA/SIMONTON
LORI ANN PERRY,
Plaintiff,
vs.
NCL (BAHAMAS) LTD.,
Defendant.
/
ORDER GRANTING PLAINTIFF’S RENEWED MOTION TO COMPEL
This matter came before the Court upon Plaintiff’s Renewed Motion to Compel
Discovery (DE # 19). Defendant NCL (Bahamas) Ltd. (“NCL”) has filed a Response in
opposition (DE # 25), and Plaintiff has filed a Reply (DE # 26). The Honorable Cecilia M.
Altonaga has referred all discovery in this case to the undersigned Magistrate Judge (DE
# 11). Upon a review of the record as a whole, and for the reasons stated below, the
Motion is granted.
I.
Background and Motion
Plaintiff seeks damages for permanent bodily injuries, primarily to her knee, that
she allegedly suffered due to Defendant’s negligence when Plaintiff slipped and fell on a
“non-apparent liquid substance” on an outside deck in a food service area of
Defendant’s vessel, Norwegian Sky (DE ## 1; 19; 25 at 1). Defendant has denied these
allegations and asserted several affirmative defenses (DE # 6).
In her requests for production, Plaintiff seeks from NCL, inter alia, all photographs
concerning the scene of the incident. NCL asserted an objection to this request, based
on “work product and/or attorney-client privilege,” and indicated that it possesses two
photographs of the area in question taken by ship security, in anticipation of litigation,
about an hour after the incident (DE # 19 at 1-2).1 Plaintiff moves to compel production of
these two photographs, asserting that they are not protected by the work product
doctrine, and, even if they were, Plaintiff is entitled to them because such facts are
otherwise unavailable to her and she has a substantial need for them (DE # 19 at 2-5).
Defendant responds that the photographs are protected by work product, and Plaintiff’s
access to the scene, both currently and at the time of the incident, along with her access
to depose those who saw the scene at the time of the incident, precludes her from
pleading undue hardship (DE # 25 at 2-6).
II.
Legal Standard and Analysis
Federal Rule of Civil Procedure 26(b), which sets forth the work product doctrine,
provides, in relevant part:
3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a party may
not discover documents and tangible things that are prepared
in anticipation of litigation or for trial by or for another party
or its representative (including the other party's attorney,
consultant, surety, indemnitor, insurer, or agent). But,
subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1);
and
(ii) the party shows that it has substantial need for the
materials to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent by
other means.
As other courts have concluded, work product protection is more akin to a qualified
immunity than to an absolute privilege because the protection can be overcome upon a
proper showing by the party seeking discovery of the materials. Henderson v. Holiday
1
While Defendant’s objection ambiguously asserts “work product and/or attorney-client
privilege,” the parties’ arguments have been limited to the work product doctrine, as is
this Order.
2
CVS, LLC, 269 F.R.D. 682, 688 (S.D. Fla. 2010) (citing Castle v. Sangamo Weston, Inc., 744
F.2d 1464, 1467 (5th Cir. 1984)); Int’l Telephone & Telegraph Corp. v. United Telephone
Co. of Fla., 60 F.R.D. 177, 186-87 (M.D. Fla. 1973) (finding same). Therefore, even if the
Court were to accept for purposes of this analysis, as Defendant argues, that the
photographs at issue are protected work product, Plaintiff would, nonetheless, be
entitled to copies of the photographs if they are otherwise discoverable and she can
show that she “has substantial need for [them] to prepare [her] case and cannot, without
undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P.
26(b)(3).
Plaintiff seeks copies of two photographs from the morning of the incident, taken
about an hour thereafter, by one of Defendant’s employees. Other courts have
considered whether such photographs should be produced. Specifically in regard to
contemporaneous photographs taken by cruise line employees as part of their
investigation, at least one court has held that a plaintiff satisfies her burden of
demonstrating undue hardship when the photographs are not otherwise available to her.
Eisenberg v. Carnival Corp., 2008 WL 2946029, No. 07-22058-CIV, at *1 (S.D. Fla. July 7,
2008). In Eisenberg, the plaintiff claimed that she slipped and fell on salad dressing in a
dining room aboard one of the defendant’s vessels. Defendant had photographs taken of
the scene, in connection with its investigation. The court found such photographs to be
fact work product but subject to production, noting that they were “critical items of
evidence.” “As those contemporaneous photographs were not otherwise available to
Plaintiff, Plaintiff satisfied her burden of showing substantial hardship requiring
production of the photographs.” Id.
Another court in a different context has found similarly. In Zoller v. Conoco, Inc.,
137 F.R.D. 9, 9-10 (W.D. La. 1991), the court discussed the value of photographs of a
3
scene where injuries occurred on an oil rig platform, compared to the verbal description
of someone who was at the scene. In finding that the plaintiff who had suffered injuries
had demonstrated substantial need for the photographs, and the present inability to
obtain the substantial equivalent, the court noted,
A verbal description of a given area cannot substitute for photographs of
the location. The description may omit relevant information such as
whether certain signs were posted or whether certain items were present.
Further, an expert may be unable to reach conclusions that may be of aid
to the jury as to the composition of materials and construction at the
location from incomplete verbal descriptions. Finally, a picture is certainly
worth a thousand words to a jury, as well as to witnesses who may be
unable to separate their recollection of the site as it appeared then from the
present appearance of the site.
Id. at 10. Zoller’s facts are distinguishable because the court noted that the
appearance of the scene of the accident, post-accident, had “changed
dramatically.” Nonetheless, the court’s analysis of the hardship in this discovery
context, presented to a plaintiff who alleges injury due to a temporary condition,
holds true; any eyewitness account of the scene of Plaintiff’s alleged accident will
fall short of the information the photographs can provide, particular under these
circumstances when the alleged liquid that was temporarily on the floor, a liquid
that Plaintiff claims was visually “non-apparent” at the time of her fall, no longer
exists as a current condition of the scene, yet lies at the heart of Plaintiff’s claims.
In refuting Plaintiff’s claims, Defendant appears to argue that, since Plaintiff’s
fiancé had contemporaneous access to the scene of the incident, Plaintiff cannot make
the requisite showing that she is unable to obtain substantially equivalent information by
other means. Defendant, however, provides no legal support for this argument, nor, as
Plaintiff points out in her Reply, does the logic of this argument appear to stand scrutiny.
Additionally, Defendant relies on Hickman v. Carnival Corp., 04-20044-CIV-UNGARO
(S.D.Fla. Aug. 16, 2004, DE # 34), but its analysis relies on distinguishable facts. In
4
Hickman, Plaintiff Mary Hickman alleged injuries suffered when her bar stool broke (See
Id. at DE # 1). These facts do not reflect a transient condition of the location; the bar
stool was almost certainly as broke months after the incident as it was on the date of the
incident (barring spoliation), and the surrounding conditions presumably substantially
the same or not relevant. Therefore, as Magistrate Judge Brown aptly noted in his Order,
Plaintiffs had access to several means of discovery in order to obtain information
substantially equivalent to that which photographs might otherwise provide, and Plaintiff
had not taken advantage of any of these discovery tools. In contrast, in the case at bar,
Plaintiff alleges that her injuries were due to a substance temporarily producing an
unsafe surface at the time of the injuries. Accordingly, contemporaneous photographs
of the scene of the incident provide information, the substantial equivalent of which
Plaintiff cannot obtain by other means. While Plaintiff’s examination of the scene of the
incident and deposition of the Defendant’s employees or others who observed the scene
provide relevant information, the photographs are “critical items of evidence” that
Plaintiff cannot otherwise obtain.
Moreover, Judge Brown’s Order did not distinguish between the photographs at
issue and the incident reports, as both were apparently at issue. Plaintiff in the case at
bar seeks copies of the two photographs only. These photographs are factual in nature;
Defendant does not assert that the photographs will reveal some other aspect of its
litigation strategy, mental impressions or legal theories, nor does Plaintiff seek to compel
any related incident or investigative report. Defendant simply claims that Plaintiff should
have taken her own pictures at the time of the incident or can depose others as
necessary and take current pictures of the scene. Defendant’s claims, however, are
unavailing. On this record, Plaintiff left the scene to receive medical treatment at the
time of her alleged fall. Thus, she was unable to take contemporaneous photographs,
5
and she should not be required to rely on others to do so. The photographs taken by the
Defendant are the only near-contemporaneous depiction of the area where the Plaintiff
fell, and any requirement that she attempt to recreate the scene of the accident and
photograph it, herself, after the fact, is fraught with peril, since such photographs would
not be as reliable as photographs taken at the time, and would depend upon her accurate
observation and recollection of the surroundings at the time.
In sum, although the photographs may be work product, there is no indication that
the photographers’ actions were directed by an attorney, other than a general direction
to take photographs of the accident scene. Thus, there is no mental process of the
attorney that will be revealed, and the Plaintiff has no other way to obtain an accurate
visual depiction of the area at or about the time of the accident. This is so, even
assuming removal of the transitory substance that Plaintiff alleges to have caused her
fall; it is still important for the Plaintiff to have access to an accurate depiction of the
physical surroundings at the time.
Therefore, upon a review of the record as a whole, and for the reasons stated
above, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Renewed Motion to Compel
Discovery (DE # 19) is GRANTED, as described in the body of this Order. Defendant
shall produce the two photographs in question on or before Friday, December 16, 2011.
DONE AND ORDERED in Miami, Florida, on December 12, 2011.
______________________________________
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished via CM/ECF to:
6
The Honorable Cecilia M. Altonaga,
U.S. District Judge
Counsel of Record
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?